202 HARVARD LAW REVIEW [Vol.

123:153
In Ice, the Supreme Court chose to reinforce the historical practice
rationale, a rationale that, read literally, scholars have suggested, could
logically mean the end not only of prohibitions on jury nullification,
95

but also of plea bargaining and other basic tenets of modern sentenc-
ing law.
96
Strict adherence to Ices bright-line rule that the jurys tra-
ditional domain may not be encroached upon that a decision
that . . . traditionally belonged to the jury
97
must belong to the jury
today would force the Court either to change radically its Sixth
Amendment jurisprudence or to explicate difficult distinctions between
the Apprendi lines core concern and the core concerns of other jury-
right considerations. Although it may be grounded in the Apprendi
lines reasoning, the Ice Courts rule, based principally on the jurys
Founding-era rights and practices, only perpetuates the incoherence
drowning Apprendi because it does not explain how or when to apply
originalism. In Sixth Amendment law, where often the historical soil
is absent or a morass,
98
a bright-line originalist approach may be rare,
and even when the original understanding is reasonably clear, the
Court may not agree on its implications. In the sentencing law con-
text, Ices originalism may have sullied the already muddied waters.
6. Sixth Amendment Witness Confrontation Testimony of
Crime Lab Experts. In its 2004 decision in Crawford v. Washington,
1

the Supreme Court refused to determine whether laboratory test re-
sults are testimonial evidence, which is subject to the requirements of
the Confrontation Clause of the Sixth Amendment. Since this deci-
sion, confusion has plagued trial and appellate courts attempting to
distinguish testimonial from nontestimonial evidence, as illustrated by
the multitude of rationales used to justify admitting or excluding such
evidence.
2
Last Term, in Melendez-Diaz v. Massachusetts,
3
the Court
held that certificates of analysis (which state the results of state labora-
tory tests) are testimonial evidence that may not be admitted without


95

See, e.g., Raoul Berger, Justice Samuel Chase v. Thomas Jefferson: A Response to Stephen
Presser, 1990 BYU L. REV. 873, 88990; Chris Kemmitt, Function over Form: Reviving the Crim-
inal Jurys Historical Role as a Sentencing Body, 40 U. MICH. J.L. REFORM 93, 10607 (2006);
Nancy J. King, Silencing Nullification Advocacy Inside the Jury Room and Outside the Court-
room, 65 U. CHI. L. REV. 433, 434 (1998) (noting a renaissance of academic support for jury nul-
lification, including originalism-based argumentation).

96

See, e.g., Laura I. Appleman, The Lost Meaning of the Jury Trial Right, 84 IND. L.J. 397,
446 n.351 (2009) (I believe that a fully recognized collective jury trial right would mandate major
procedural changes in guilty pleas and plea bargaining.); Bibas, supra note 67, at 202 (A radical
originalist might have outlawed plea bargaining . . . .).

97

Ice, 129 S. Ct. at 719.

98

Bibas, supra note 67, at 204.

1

541 U.S. 36 (2004).

2
See United States v. Left Hand Bull, No. CR 05-30106(01)-CBK, 2009 WL 2030544 (D.S.D.
July 13, 2009); People v. Milner, No. B206735, 2009 WL 2025944 (Cal. Ct. App. July 14, 2009).

3

129 S. Ct. 2527 (2009).
2009] THE SUPREME COURT LEADING CASES 203
accompanying live testimony by the analyst who conducted the tests.
4

Despite the outcry of law enforcement and laboratory directors that
the decision will make criminal prosecutions more difficult or will lead
to acquittals merely because analysts are too busy to appear in court,
Melendez-Diaz was correctly decided. While the decision may burden
prosecutors and create an additional hurdle to conviction, the values
underlying the Confrontation Clause and the need to prevent auto-
matic acceptance of laboratory results demand that courts treat test
reports as testimonial evidence. Juries ill-advised deference to test re-
sults threatens to undermine not only the essential values underlying
the jury system, but also defendants ability to receive a fair trial.
In 2001, police officers arrested Luis Melendez-Diaz for suspected
drug trafficking.
5
The officers observed Melendez-Diaz making fur-
tive movements during the drive to the station and later found sev-
eral small bags of cocaine hidden in the police cruiser. At trial, the
prosecution entered these bags into evidence along with certificates of
analysis stating the results of forensic testing.
6
The certificates, which
had been sworn before a notary public by analysts at the State Labo-
ratory Institute of the Massachusetts Department of Public Health, re-
ported the weight of the bags and stated that they had been examined
with the following results: [t]he substance was found to contain: Co-
caine.
7
Despite the defendants Confrontation Clause objection, the
court admitted the certificates pursuant to state law as prima facie
evidence of the composition, quality, and net weight of the substance
analyzed.
8
Melendez-Diaz was convicted.
9

Melendez-Diaz appealed to the Appeals Court of Massachusetts,
claiming that he was entitled to required findings of not guilty, that the
admission of the drug analysis certificates was inconsistent with Craw-
ford, and that his trial counsel was ineffective because counsel failed to
file a motion to suppress evidence.
10
The court affirmed the convic-
tions.
11
It held that based on all the evidence, including the drug
analysis certificates, there could be no real question concerning the
sufficiency of the Commonwealths evidence,
12
and it upheld the trial
courts denial of Melendez-Diazs motions for required findings of not


4
Id. at 2542.

5

Id. at 2530.

6

Id. at 253031.

7

Id. at 2531 (internal quotation mark omitted).

8

Id. at 253031; see MASS. GEN. LAWS ch. 111, 13 (2008).

9

Commonwealth v. Melendez-Diaz, No. 05-P-1213, 2007 WL 2189152, at *1 (Mass. App. Ct.
July 31, 2007).

10

Id.

11

Id.

12

Id. at *3.
204 HARVARD LAW REVIEW [Vol. 123:153
guilty.
13
In a footnote, it stated that certificates of drug analysis [do]
not deny a defendant the right of confrontation and [are], therefore,
not subject to the holding in Crawford v. Washington.
14
The court
mentioned Crawford nowhere else in its opinion. The court also re-
jected Melendez-Diazs claim that his counsel had been ineffective be-
cause counsel failed to file a motion to suppress the retrieved drugs
and failed to point out to the jury potential inaccuracies in the officers
descriptions of the suspect packages.
15
The Supreme Judicial Court of
Massachusetts denied review.
16

The Supreme Court reversed and remanded.
17
Writing for the
Court, Justice Scalia
18
held that affidavits reporting the results of fo-
rensic analysis are testimonial evidence, and the affiants are therefore
witnesses whom defendants can cross-examine under their Sixth
Amendment right of confrontation. Justice Scalia focused on the
Crawford assertion that affidavits are within the core class of testimo-
nial statements covered by the Confrontation Clause.
19
He empha-
sized that the purpose of the affidavits was functionally identical to
live, in-court testimony.
20
This classification means that, absent a
showing that the analysts in question are unable to testify at trial and
that the defendant has had the opportunity to cross-examine them, the
defendant is entitled to confront the analysts at trial.
21
In so holding,
the Court rejected three arguments. First, it rejected the contention
that analysts were not accusatory witnesses,
22
because the analysts
were clearly witnesses against the accused.
23
Second, it denied the
contention that analysts were not direct eyewitnesses of the sort
whose ex parte testimony was most notoriously used at the trial of Sir
Walter Raleigh,
24
pointing out that [i]f an affidavit submitted in re-
sponse to a police officers request to write down what happened suf-
fices to trigger the Sixth Amendments protection . . . then the ana-
lysts testimony should be subject to confrontation as well.
25
Justice
Scalia stated that the dissents argument that analyst certifications fell


13

Id. at *4.

14

Id. at *4 n.3.

15

Id. at *4.

16

Commonwealth v. Melendez-Diaz, 874 N.E.2d 407 (Mass. 2007) (unpublished table deci-
sion).

17

Melendez-Diaz, 129 S. Ct. at 2542.

18

Justice Scalia was joined by Justices Stevens, Souter, Thomas, and Ginsburg.

19

Melendez-Diaz, 129 S. Ct. at 2532 (citing Crawford v. Washington, 541 U.S. 36, 5152
(2004)).

20

Id.

21

Id.

22

Id. at 2533.

23

Id. at 253334.

24

Id. at 2534.

25

Id. at 2535 (citing Davis v. Washington, 547 U.S. 813, 81920 (2006)).
2009] THE SUPREME COURT LEADING CASES 205
under the classic copyist exception would prove too much: the dis-
sents novel exception from coverage of the Confrontation Clause
would exempt all expert witnesses hardly an unconventional class
of witnesses.
26

The Court pointedly refuted the third contention that scientific
testing has guarantees of trustworthiness that make its results admissi-
ble without accompanying live testimony.
27
Justice Scalia noted that,
[c]ontrary to respondents and the dissents suggestion, there is little
reason to believe that confrontation will be useless in testing analysts
honesty, proficiency, and methodology.
28
Justice Scalia reiterated the
Courts statement in Crawford that, while the Confrontation Clauses
ultimate goal is to ensure reliability of evidence . . . it is a procedural
rather than a substantive guarantee. It commands, not that evidence
be reliable, but that reliability be assessed in a particular manner: by
testing in the crucible of cross-examination.
29
The Court flatly re-
jected the idea that the requirements of the Confrontation Clause
should be relaxed for prosecutorial convenience, stating that [w]e do
not have license to suspend the Confrontation Clause when a prefer-
able trial strategy is available.
30
Justice Scalia paid considerable at-
tention to the concern that neutral scientific testing may not be as
neutral or reliable as many believe [f]orensic evidence is not
uniquely immune from the risk of manipulation, especially since in
many cases the laboratory administrator reports to the head of the law
enforcement agency in question, as a National Academy of Sciences
study pointed out.
31

Justice Scalia made a number of other critiques of the dissent.
First, he emphasized that confrontation is useful to weed out not only
the fraudulent analyst, but the incompetent one as well.
32
Second,
because the affidavits were prepared specifically for trial, they also did
not qualify as business or official records excepted from the hearsay
rule.
33
Finally, Justice Scalia pointed out that, while the rule would
place a burden on the prosecution, he expected defense counsel in
many cases to avoid insisting on live testimony, the effect of which
w[ould] be merely to highlight rather than cast doubt upon the foren-
sic analysis.
34



26

Id.

27

Id. at 2536.

28

Id. at 2538.

29

Id. at 2536.

30

Id.

31

Id. (citing NATL RESEARCH COUNCIL OF THE NATL ACADS., STRENGTHENING FO-
RENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD (2009)).

32

Id. at 2537.

33

Id. at 2538.

34

Id. at 2542.
206 HARVARD LAW REVIEW [Vol. 123:153
Justice Thomas concurred in order to make clear that he consid-
ered the holding limited to the types of formalized testimonial mat-
erials described in his White v. Illinois
35
concurrence.
36
Relying on
stare decisis and citing a long line of cases on the requirement of con-
frontation for extrajudicial statements in formalized testimonial mate-
rials, Justice Thomas found that the analyses at issue were within
the core class of testimonial statements governed by the Confrontation
Clause.
37

Justice Kennedy, joined by Chief Justice Roberts and Justices
Breyer and Alito, dissented.
38
He was troubled by the majoritys posi-
tion that there was no real distinction between the scientific tests per-
formed by laboratory analysts and conventional witnesses who fall
under the mandates of the Confrontation Clause.
39
He was especially
concerned about the rulings potential to disrupt criminal procedures
that already have ample protections against the misuse of scientific
evidence.
40
The dissent also argued that the majority did not specify
which participants in the scientific testing process the Confrontation
Clause requires to appear at trial.
41
In the dissents view, the major-
itys failure to draw a clear boundary delimiting the confrontation
right threatens to disrupt if not end many prosecutions where guilt is
clear but a newly found formalism now holds sway.
42
Justice Ken-
nedy pointed out the inefficiencies and practical impossibilities that
would result from the Courts holding
43
and disputed the notion that
forcing analysts to testify would reduce the risk of error or fraud.
44
He
also posited that an analyst would have to wait for days in a hallway
outside the courtroom before being called to offer testimony that
[would] consist of little more than a rote recital of the written report.
45

The dissent also rejected the contention that laboratory test results
qualify as witnesses against the defendant as that concept was under-
stood at the Founding, arguing that test results involve neither recall-
ing events observed in the past nor responding to questions under in-


35
502 U.S. 346 (1992).

36

Melendez-Diaz, 129 S. Ct. at 2543 (Thomas, J., concurring) (quoting White, 502 U.S. at 365
(Thomas, J., concurring in part and concurring in the judgment)).

37

Id.

38

Id. (Kennedy, J., dissenting).

39

Id.

40

Id. at 2544.

41

Id. at 254446.

42

Id. at 254445; see also id. at 254950.

43

Id. at 254950.

44

Id. at 2548 (It is not plausible that a laboratory analyst will retract his or her prior conclu-
sion upon catching sight of the defendant the result condemns. . . . [A]n analyst performs hun-
dreds if not thousands of tests each year and will not remember a particular test or the link it had
to the defendant.).

45

Id. at 2549.
2009] THE SUPREME COURT LEADING CASES 207
terrogation.
46
Justice Kennedy argued that the more apt Founding-era
parallel would be to copyist affidavits, which certified copies of docu-
ments as correct and were accepted without hesitation by American
courts.
47
He concluded by attacking Justice Scalias proposition that
defense lawyers would choose not to exercise a newfound Melendez-
Diaz objection to keep incriminating evidence out of court.
48

The Courts holding in Melendez-Diaz is correct not only on consti-
tutional grounds, but also for pragmatic reasons. While the dissent ar-
gued that the ruling will debilitate the criminal justice system by re-
quiring analysts to testify regarding all of their tests,
49
its objections
are outweighed by two countervailing arguments against overreliance
on such reports. First, the strong tendency of jurors to accept scien-
tific evidence as determinative despite its fallibility militates in favor of
providing the defense an opportunity to point out the many sources of
error in scientific testing and to level a playing field too easily tilted by
the supposedly clear answers provided by science. Second, laboratory
analysts are no more reliable than other witnesses or even than
other expert witnesses and are often accountable to the state, with
their reports created at the request of the prosecution, making overre-
liance on them all the worse.
Had the Court gone further in emphasizing the danger of overreli-
ance on scientific evidence and its power to erode Confrontation
Clause protections, it could have prevented lower courts troubling re-
cent attempts to limit the reach of the Melendez-Diaz right to confron-
tation. The District of South Dakota held in July 2009 that Melendez-
Diaz and Crawford concern only the admission of testimonial evidence
at trial, allowing the use of such evidence without confrontation in a
supervised release revocation hearing.
50
Such a limited reading exalts
the form of Melendez-Diaz over its skepticism toward assuming the
veracity of such evidence in proceedings that may result in a depriva-
tion of liberty. Other courts have attempted to interpret Melendez-
Diaz by arguing that there is no Confrontation Clause violation if the
underlying report is not admitted but merely relied upon by a prosecu-


46

Id. at 2551.

47

Id. at 2553.

48

Id. at 2557.

49

Cf., e.g., Adam Liptak, Justices Rule Crime Analysts Must Testify on Lab Results, N.Y.
TIMES, June 26, 2009, at A1; Harry Sandick & Justin Mendelsohn, Divided Supreme Court Ex-
tends Reach of Confrontation Clause, N.Y.L.J., July 20, 2009, at 2 (noting that the invalidation of
hearsay exceptions would complicate the trial of white-collar cases in which the government may
be required to call records custodians from far-flung locations and that, after Melendez-Diaz, de-
fense attorneys should be alert to efforts by prosecutors to offer evidence without live testimony).

50

United States v. Left Hand Bull, No. CR 05-30106(01)-CBK, 2009 WL 2030544, at *1
(D.S.D. July 13, 2009).
208 HARVARD LAW REVIEW [Vol. 123:153
tion witness.
51
Such efforts are perhaps even more detrimental than
would be submitting the reports themselves, and they fail to solve the
underlying problem of overreliance on laboratory evidence as the de-
finitive truth. These distinctions illustrate trial courts reluctance to
require the testimony called for in Melendez-Diaz; they are also a re-
sponse to the dissents fear that the Courts holding would prove im-
possible to implement.
Before Melendez-Diaz, the Fourth, Seventh, and Eleventh Circuits
held lab reports to be nontestimonial statements of machines or com-
puters.
52
In Judge Easterbrooks view, while raw data produced by
scientific instruments is not testimonial, the interpretation of those
data may be testimonial an important distinction.
53
However, it
has been pointed out that [t]he underlying chemical composition of
cocaine, which the Seventh Circuit considers to be nontestimonial, is
inseparable from the fact that the underlying chemical composition of
cocaine is in fact simultaneously cocaine itself, which the Seventh Cir-
cuit considers to be testimonial.
54
Because machine-generated labo-
ratory reports are produced jointly by machines and the persons oper-
ating the machines, the reports must be considered statements of
those persons.
55
Drug analyses are especially problematic because they
reach conclusions about the tests; the significance of the results of the
drug tests are found within the four corners of the certificate.
56
Sa-
liva and fingerprints too do not reveal anything . . . until an expert
uses sophisticated techniques to interpret them,
57
so it is disingenuous
to argue that forensic scientific evidence is not subject to the same
dangers as any other type of accusatory statement from a government
witness.
At the heart of the Courts Confrontation Clause jurisprudence,
particularly in the context of scientific evidence, is a concern for main-
taining the jury as the ultimate arbiter of guilt.
58
Despite jurors cru-
cial role as factfinders, however, they increasingly assume that forensic
laboratory results contain some kind of absolute truth, as evidenced by


51

People v. Milner, No. B206735, 2009 WL 2025944, at *9 (Cal. Ct. App. July 14, 2009).

52

Joe Bourne, Note, Prosecutorial Use of Forensic Science at Trial: When Is a Lab Report
Testimonial?, 93 MINN. L. REV. 1058, 1079 (2009).

53

Id. at 1081.

54

Id.

55

Id. at 1083.

56

Josephine Ross, Whats Reliability Got To Do with the Confrontation Clause After Craw-
ford?, 14 WIDENER L. REV. 383, 419 (2009).

57

Kenworthey Bilz, Self-Incrimination Doctrine Is Dead; Long Live Self-Incrimination Doc-
trine: Confessions, Scientific Evidence, and the Anxieties of the Liberal State, 30 CARDOZO L.
REV. 807, 858 (2008).

58

Cf. id. at 84748 (describing criminal trial procedure as a formal ritual of democracy, id. at
848 (emphasis omitted)).
2009] THE SUPREME COURT LEADING CASES 209
what many call the CSI effect.
59
Professor Tom Tyler, in analyzing
the effect and its impact on trials, notes that television portrayals of
science as the ultimate evidence may provide a mechanism for easier
convictions: People are already motivated to find ways to legitimate
or justify their desire to convict. Science provides one way to do so,
causing people to see within scientific evidence the level of certainty
that makes them comfortable with a guilty verdict.
60
Yet while scien-
tific evidence is increasingly reliable and relied upon, its error rate is
still governed by laboratory and other human error.
61

The more jurors are exposed to representations in popular culture
that forensic reports are determinative evidence, the more they are
likely to cede their crucial role as factfinders to machines.
62
This dy-
namic was borne out in a study conducted by Professor Kimberlianne
Podlas, in which 254 jury-eligible adults responded to scenarios in a
manner indicating that the CSI effect did not harm and possibly
helped the prosecution.
63
Professor Podlass data analysis suggests
that, if there is any effect of CSI, it is to exalt the infallibility of foren-
sic evidence, favor the prosecution, or pre-dispose jurors towards find-
ings of guilt.
64
According to another scholar, the concern this study
raises is that highly accurate, sophisticated and impressive scientific
evidence doesnt aid juries so much as lead them around by the
nose.
65
Professor Podlas notes that while [o]n its own, scientific evi-
dence can be rather seductive[, i]n conjunction with CSI, it becomes
insurmountable.
66



59

Some believe that the CSI effect could just as aptly be called the Innocence Project effect.
See id. at 837. In either case, the point is the same that jurors and the public in general are
easily swayed by the seeming infallibility of forensic evidence and laboratory analysis. There are
actually three tendencies to which the CSI effect can refer: first, jurors unreasonable expecta-
tions for the evidence it is possible to gather, making convictions more difficult to obtain; second,
the raising of scientific evidence to the level of infallibility, making it nearly impenetrable; and
finally, an increase in the general populations interest in forensics and science. Kimberlianne
Podlas, The CSI Effect: Exposing the Media Myth, 16 FORDHAM INTELL. PROP. MEDIA &
ENT. L.J. 429, 433 (2006). This comment will use the second definition.

60

Tom R. Tyler, Viewing CSI and the Threshold of Guilt: Managing Truth and Justice in Real-
ity and Fiction, 115 YALE L.J. 1050, 1071 (2006) (footnote omitted). Professor Tyler also notes a
study in which 19% of Americans expressed at least a great deal of confidence in courts and the
legal system, but 40% had the same level of confidence in the scientific community. Id. at 1071
72. In his view, then, [t]he linkage of evidence to science . . . enhances verdict legitimacy. Id. at
1072.

61

Bilz, supra note 57, at 816.

62

See Tyler, supra note 60, at 1084 (People generally overvalue scientific evidence and engage
in an active process of distortion to create justifications for decisions that they want to make. By
providing increased legitimacy for scientific evidence, CSI may encourage people to make scien-
tific evidence the focus of their justification efforts.).

63

Podlas, supra note 59, at 46162.

64

Id. at 465.

65

Bilz, supra note 57, at 865.

66

Podlas, supra note 59, at 437.
210 HARVARD LAW REVIEW [Vol. 123:153
The tendency of forensic evidence to convince a jury of guilt too
easily is dangerous. It is well established that jurors overweigh the
probative value of science, putting greater weight on such evidence
than its statistical value warrants.
67
This effect is damaging to de-
fendants given the tendency of television-viewing jurors to presume
guilt from the fact of prosecution: a CSI-viewing juror may fill in
gaps in the prosecution [sic] case with television-cultivated beliefs that:
(a) arrests are based on forensics; (b) forensics proves guilt; and there-
fore, (c) anyone arrested (and on trial) is guilty.
68
In Crawford, Justice
Scalia wrote, Dispensing with confrontation because testimony is ob-
viously reliable is akin to dispensing with jury trial because a defen-
dant is obviously guilty.
69
Although courts and jurors unblinkingly
see forensic data as the truth, many forensic techniques have not been
proven by the larger scientific community, crime labs lack accredita-
tion requirements, and forensic experts are subject to no professional
standards.
70

Some courts see a distinction between mechanical testing and
more complex testing, suggesting that a defendant cannot effectively
cross-examine statements in the former mechanical category even
when the technician is present, whereas the complex, conclusion-heavy
tests in the later [sic] category often require explanation from the per-
son responsible for the procedure.
71
The problem with this argument
is that the defendant has an interest in cross-examining a technician
not just on the conduct of a particular test but on the methodology in
general.
72
While jurors expect science to lead to a single correct an-
swer, in real life, forensic conclusions are only as good as the techni-
cians who retrieve the evidence, test it, and draw conclusions from
it.
73
Had Justice Scalia pointed out, as Professor Podlas does, that
DNA can be interpreted differently by different technicians,
74
the dis-
sents view that such evidence is highly reliable would have lost much
of its force.
The second pragmatic argument against overreliance on scientific
evidence that the Melendez-Diaz majority should have pointed out is


67

Tyler, supra note 60, at 1063; see also id. at 106869; Joseph Sanders, The Merits of the Pa-
ternalistic Justification for Restrictions on the Admissibility of Expert Evidence, 33 SETON
HALL L. REV. 881, 901 (2003).

68

Kimberlianne Podlas, Impact of Television on Cross-Examination and Juror Truth, 14
WIDENER L. REV. 483, 509 (2009).

69

Crawford v. Washington, 541 U.S. 36, 62 (2004).

70

Podlas, supra note 59, at 43940.

71

Thomas F. Burke III, The Test Results Said What? The Post-Crawford Admissibility of
Hearsay Forensic Evidence, 53 S.D. L. REV. 1, 16 (2008).

72

Id.

73

Podlas, supra note 59, at 438.

74

Id.
2009] THE SUPREME COURT LEADING CASES 211
that [n]umerous forensic technicians, crime scene investigators, and
crime-reconstruction experts have lied under oath, faked their creden-
tials, and fabricated evidence.
75
Forensic science is guided by few
standards; Congress has now asked the National Academy of Sciences
to determine ways to improve the quality of forensic science.
76
The
federal government has also required states to create an entity and
process for independent investigations of alleged misconduct, but that
legislation has not been enforced and many states have failed to com-
ply.
77
While cross-examination may not be the best vehicle for bring-
ing out the deficits in the report and raising issues of reasonable
doubt,
78
and may even give the scientific testimony greater power,
79

the reminder to juries that humans, with all of their fallibility and abil-
ity to err,
80
were involved in running scientific tests and reaching con-
clusions from results should not be undervalued.
Given these concerns with juror overreliance on science, the
Courts decision in Melendez-Diaz is an essential return to the concept
that the Confrontation Clause protects the reliability of the evidence
on which jurors rest their decisions. As Professor Josephine Ross
pointed out before the decision, the Courts prior willingness to jetti-
son reliability as a concern of the Confrontation Clause appears at
odds with [the] long history linking the Clause to reliability.
81
The
perceived reliability of drug certificates, in fact, strengthens the
Courts holding that admitting them without question is a core abuse
and is similar to the abuses that were historically the focus of the
clause.
82
Courts rely on cross-examination as a way to test evidence if


75

Id. at 441; see, e.g., Moldowan v. City of Warren, 573 F.3d 309, 32223 (6th Cir. 2009);
Pierce v. Gilchrist, 359 F.3d 1279, 128384 (10th Cir. 2004); see also Brandon L. Garrett & Peter J.
Neufeld, Invalid Forensic Testimony and Wrongful Convictions, 95 VA. L. REV. 1, 5 (2009) (noting
scandals involving faulty work at forensic laboratories). Professor Josephine Ross points out that
other discussions of such abuses, like those of Pamela Metzger, do not explain whether cross-
examination helped uncover the falsifications, or whether confrontation rights would have made a
difference in any of the examples she gives. Ross, supra note 56, at 420. Nonetheless, the focus
should be on the power of confrontation rights to reduce juries reliance on such reports, whether
or not they are the products of abuse or misdeeds.

76

Garrett & Neufeld, supra note 75, at 6.

77

Id. at 94. In addition, [n]o federal legislation regulates the quality of non-DNA forensic
disciplines or the content of reports or testimony, which is significant because the overwhelming
majority of crime lab work involves techniques other than DNA analysis. Id. at 9495.

78

Ross, supra note 56, at 423; see also Garrett & Neufeld, supra note 75, at 97 (suggesting that
the adversary system cannot be depended upon as an adequate safeguard).

79

See Podlas, supra note 68, at 510.

80

E.g., Garrett & Neufeld, supra note 75, at 97 (Though the technology has changed over
time, the sources of human error, misinterpretation, and misconduct have not.).

81

Ross, supra note 56, at 411.

82

Id. at 418.
212 HARVARD LAW REVIEW [Vol. 123:153
an expert overstates it or discusses it in a misleading way.
83
But
judges often deferentially admit expert testimony, leaving it to the jury
to assess
84
making cross-examination essential to defense efforts to
prevent improper reliance. Professor Podlas notes that cross-
examination can reveal the biases, distortions, and falsehoods of men-
dacious witnesses, as well as mistakes and failures of perception and
often serves as the lynchpin of the case.
85
It is thus a powerful tool
to counter juries tendency to believe scientific data that is presented
in the manner that television has led them to expect.
A number of courts and prosecutors have noted the degree to
which the increase in reliance on forensic evidence and juries famili-
arity with it have changed trial practice. In Delaware v. Cooke
86
the
prosecution contend[ed] that it want[ed] to demonstrate to the jury
that it conducted a thorough investigation, and assert[ed that] being
able to produce this evidence before a jury addresse[d] concerns the
State ha[d] that jurors have or may have . . . heightened expectations
of what the prosecution must do or show in order to meet its burden of
proof.
87
In a similar vein, the Fifth Circuit recently upheld a trial
courts admission of crime scene photographs showing the victims de-
composing body over the defendants objection that they were more
prejudicial than probative because [t]hey helped explain why little
physical evidence was found, a significant concern because, [i]n this
age of the supposed CSI effect, explaining to the jury why the Gov-
ernment had little in the way of physical or scientific evidence was ar-
guably critical to the Governments case.
88
Melendez-Diaz ought to
have recognized more explicitly that the import of forensic testing cuts
both ways: scientific evidence can both exonerate and condemn, and
fairness requires that it be subject to live testimony to ensure that ju-
ries give it the proper weight and no more.
B. Due Process
1. Peremptory Challenges Harmless Error Doctrine. Pro-
vided since at least the sixteenth century
1
and historically lauded as
showing mercy to criminal defendants,
2
peremptory challenges are


83

Garrett & Neufeld, supra note 75, at 33; see also Erica Beecher-Monas, Reality Bites: The
Illusion of Science in Bite-mark Evidence, 30 CARDOZO L. REV. 1369, 1390 (2009) (noting judi-
cial reliance on the adversary system to challenge suspect expert testimony).

84

Garrett & Neufeld, supra note 75, at 90.

85

Podlas, supra note 68, at 485 (footnotes omitted).

86
914 A.2d 1078 (Del. Super. Ct. 2007).

87

Id. at 1082.

88

United States v. Fields, 483 F.3d 313, 355 (5th Cir. 2007).

1

See J.H. BAKER, AN INTRODUCTION TO ENGLISH LEGAL HISTORY 509 (4th ed. 2007).

2

See Lewis v. United States, 146 U.S. 370, 376 (1892) (reciting Blackstones views).